OCR Text |
Show 356 APPROPRIATION OF WATER storage and use of flood or waste water, and the doctrine of 'first in time, first in right' applies to both."651 As a related matter, it may be noted that in a 1969 decision, the Texas Court of Civil Appeals applied a system of "weighted priorities" to distribute water from the lower Rio Grande River for irrigation purposes among the several claimants in what the court called "unprecendented" circumstances in that case.652 The court stressed, among other things, that the Texas water appropriation acts were primarily intended to apply to free-flowing streams and any constructed storage facilities of the appropriated whereas the Rio Grande River had been changed from a free-flowing stream by the construction of government dams. The court concluded that the legislature had failed to "specifically treat of rights in stored waters when such storage made greater quantities of water available for irrigation purposes by the construction of dams by agencies of the national or state governments. The statutes of 1895 and 1913 sound as an uncertain trumpet in the complicated situation which now confronts us, involving as it does the mixing and impounding of two classes of water,-flood and ordinary flow. There is room for some equitable adjustment."653 The court also said that "although the Legislature in 1895 and 1913 never envisioned or contemplated the present existing situation, we would not be justified in saying that the statutes have no application to the case. However, the equity arm of a court is not inoperative in the presence of an unprecendented situation."654 This was preceeded by the statement that: While it may be impossible to state with accuracy the proportions of the two classes of water that may be impounded in Falcon reservoir at any particular time or within any particular year, it is reasonably safe to assume that the greater portion of said waters is and will be storm or flood waters, and it could be argued with force that those certified filings and permits calling for storm waters should be allowed a preference over those calling only for the ordinary flow and underflow of the river. In our opinion, there is no practical value to be realized in recognizing a distinction between certified filings and permits, nor between permits of different dates. All of such filings and permits were issued under laws which were adopted in contemplation of free flowing as contrasted with controlled rivers or streams.655 651 Federal Land Bank v. Morris, 112 Mont. 445, 116 Pac. (2d) 1007, 1012 (1941). This case was not mentioned in either of the 1968 or 1970 opinions. 652State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S. W. (2d) 728, 739, 760 (Tex. Civ. App. 1969). The case dealt with water rights on the segment of the river system lying below the Falcon dam. Id. at 730. Among additional complicating factors, the court referred to the past uncertainty regarding water rights along the lower Rio Grande, discussed below. 6S3Id. at 745. 654Id. at 744-745. 6SSId. at 744. Regarding difficulties in distinguishing flood waters and normal flows, |